Wham-O Manufacturing Co v Lincoln Industries Ltd: 1984

(Court of Appeal New Zealand) The wooden models made from preliminary drawings, which was used to produce a mould from which moulded discs known as Frisbees were made, fell ‘within the definition of sculptures and are thus properly the subject of copyright protection.’
Davison CJ refered to dictionary definitions of sculpture and said: ”In the New Encyclopaedia Britannica, vol. 16, p.421 there appears an article on ‘Art of sculpture’. The following passages are of some interest:
‘Sculpture is not a fixed term that applies to a permanently circumscribed category of objects or sets of activities. It is, rather, the name of an art that grows and changes and is continually extending the range of its activities and evolving new kinds of objects. The scope of the term is much wider in the second half of the 20th century than it was only two or three decades ago, and in the present fluid state of the visual arts, nobody can predict what its future extensions are likely to be.
Certain features, which in previous centuries were considered essential to the art of sculpture, are not present in a great deal of modern sculpture and can no longer form part of its definition. One of the most important of these is representation. Before the 20th century, sculpture was considered a representational art; but its scope has now been extended to include non-representational forms. It has long been accepted that the forms of such functional three-dimensional objects as furniture, props and buildings may be expressive and beautiful without being in any way representational, but it is only in the 20th century that non-functional, non-representational, three-dimensional works of art have been produced.
. . 20th century sculpture is not confined to the two traditional forming processes of carving and modelling or to such traditional natural materials as stone, metal, wood, ivory, bone and clay. Because present-day sculptors use any materials and methods of manufacture that will serve their purposes, the art of sculpture can no longer be identified with any special materials or techniques. Through all of these changes there is probably only one thing that has remained constant in the art of sculpture, and it is this that emerges as the central and abiding concern of sculptors:
The art of sculpture is the branch of the visual arts that is especially concerned with the creation of expressive form in three dimensions.
. . Furthermore it appears to be implicit in the definitions of sculpture to which we have already referred and from the article in the New Encyclopaedia Britannica particularly the passage reading: ‘The art of sculpture is the branch of the visual arts that is especially concerned with the creation of expressive form in three dimensions’ that sculpture should in some way express in three-dimensional form an idea of the sculptor. It seems to us inappropriate to regard utilitarian objects such as plastic flying discs, manufactured as toys by an injection moulding process, as items of sculpture for the purpose of the Copyright Act. They lack any expressive form of the creator and any idea which the creator seeks to convey.’


Davison CJ


[1985] RPC 127, [1984] 1 NZLR 641


England and Wales

Cited by:

CitedLucasfilm Ltd and Others v Ainsworth and Another CA 16-Dec-2009
The claimants had made several Star Wars films for which the defendants had designed various props items. The parties disputed ownership of the rights in the designs, and in articular of a stormtrooper helmet. The issues came down to whether the . .
CitedLucasfilm Ltd and Others v Ainsworth and Another SC 27-Jul-2011
The claimant had produced the Star War films which made use of props, in particular a ‘Stormtrooper’ helmet designed by the defendant. The defendant had then himself distributed models of the designs he had created. The appellant obtained judgment . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property

Updated: 11 May 2022; Ref: scu.384435